*Honorable Wesley E. Brown, Senior United States District

Judge for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 20 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

______________________

DENNIS BORGIALLI,

Plaintiff-Appellant,

v.

THUNDER BASIN COAL CO.,

ATLANTIC RICHFIELD CO.,

THUNDER BASIN COAL CO. L.L.C.,

Defendants-Appellees.

No. 99-8009

______________________

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 98-CV-1009-D)

______________________

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge,

and BROWN, Senior District Judge.*

______________________

Timothy W. Miller, Reeves & Miller, Casper, Wyoming, (Jeremy D.

Michaels, Michaels & Michaels, Gillette, Wyoming, with him on the

briefs) for Plaintiff-Appellant.

Gary R. Scott, Hirst & Applegate, P.C., Cheyenne, Wyoming, for

Defendants-Appellees.

_____________

BROWN, Senior District Judge.

_____________

Plaintiff Dennis Borgialli claims that his former employer,

the Black Thunder Mine in Gillette, Wyoming, (hereafter referred to

as the "Mine") terminated his employment in violation of the

Americans with Disabilities Act, 42 U.S.C. §12101 et seq, and in
 

1 The Mine was operated by defendants Thunder Basin Coal

Company, Atlantic Richfield Company, and the Thunder Basin Coal

Company, L.L.C.

 

2 Plaintiff's state claims were based upon alleged violation

of the Wyoming Fair Employment Practices Act, and the allegation

that defendants had breached an implied contract of employment,

requiring "cause" for termination.

2

violation of Wyoming state law. 1 The district court entered

summary judgment for the defendants on all claims, and plaintiff

has appealed this order.2 We exercise jurisdiction under 28 U.S.C.

§1291 and affirm.

BACKGROUND

There is no real factual dispute between the parties as to the

events which led to the termination of plaintiff's employment at

the Mine. For this reason, we refer to the record and various

factual findings made by the trial court in its ruling on the

motion for judgment. 

Plaintiff worked as a "blaster" for eighteen years at the

Mine. During his employment, plaintiff received frequent praise

for his outstanding performance and safety record. His blasting

job included varied tasks such as drilling holes up to 12-1/4" in

diameter and 240 feet in depth, operating vehicles for transporting

explosive materials, and the placement and detonation of large

amounts of explosives. As a part of his job, plaintiff operated

vehicles and other equipment in dangerous geographical areas such

as work in close proximity to high walls with shear drop-offs.

Plaintiff's duties also included a specific responsibility "for
 

3 Plaintiff's written job description is found in Appellant's

Appendix, at pp. 120-123. The explosives used at the Mine were of

the type used in the Oklahoma City bombing, a fertilizer-diesel

mixture, and the amount used per blast was "usually in the millions

of pounds." (Appendix at p. 199)

3

personal safety, as well as [the] safety of other personnel in and

around drilling and blasting locations. . . ." 3

The explosives used at the Mine were of the type used in the

Oklahoma City bombing, a fertilizer-diesel mixture. In his

deposition, plaintiff described the massive effect of each blast in

this manner: 

A. We use AMFO. It's a fertilizer-diesel

mixture, along with the detonator -- I'm

not sure what they're made out of -- to

set the explosion off, as well as primer

cord. And the amount is usually in the

millions of pounds.

Q. Per blast?

A. Per blast, which is quite massive.

Q. How would that compare, for instance,

with the Oklahoma City bombing as far as

the amount and kind of explosive used in

that blast?

A. If my memory serves me right, in Oklahoma

City, it was about 2,000 pounds.

Q. Of the same kind of explosive?

A. Yes. . . And that would fill one hole

about half full.

Q. And how many holes are you working with

on a blast?

A. Anywhere from 200 to 800 holes.

(Appendix at p. 199).
 

4 The trial court found that plaintiff's work was "both

involuntarily and voluntarily restricted through the summer of

1996." 

4

In early 1996, plaintiff's work environment changed because

his former subordinate, John Opseth, became his supervisor. These

two men apparently had a contentious relationship dating back at

least to 1995. Beginning in March, 1996, plaintiff began having

problems with dizziness, blurred vision and nausea. In the

following months, plaintiff saw several different physicians for

these symptoms, and their medical opinions ranged from multiple

sclerosis to depression to closed head injury to some type of

medication reaction. It was finally determined that many of

plaintiff's physical problems were caused by migraine headaches.

On May 6, 1996, plaintiff received a restricted medical release

signed by Dr. Mitchell Horan who wrote that, because of visual

symptoms and dizziness, plaintiff should not be permitted to drive

heavy equipment. Plaintiff concedes that as of May 22, 1996, he

was not able to return to his job as a blaster. (Appendix at 100,

101). Dr. Horan testified that if plaintiff had been allowed to

return to work in June, 1996, he would have contacted the Mine to

advise that he should not be working because of dizziness problems.

It was Dr. Horan's opinion that plaintiff should not have been

allowed to return to work at any time before mid to late August,

1996. (Appendix at 189, 190). 4 

The Mine allowed plaintiff to return to full capacity as a

blaster within a few days after receiving work releases signed by
 

5 With respect to plaintiff's migraine headaches, it was Dr.

Sabow's opinion that plaintiff "is quite capable of returning to

work. I do not consider him to be at any risk to himself or to

others with his present condition." (Appendix, at p. 84)

Dr. Ferrell agreed with Dr. Sabow’s opinion. (Appendix at p.

85).

 

6 Opseth gave plaintiff 274 total points, which was not

sufficient to maintain plaintiff in a position of "Tech. VI."

 

7 In conversations with supervisors on that date, plaintiff

voiced a concern that "he wasn't sure if he was going to hurt

someone or hurt himself." (Appendix at 197).

According to Ms. Hagerman's notes, plaintiff was reported as

stating ". . . If you think I was unsafe before, you should see how

unsafe I am now . . . . " (Appendix at 173).

5

Dr. Sabow on July 31, 1996, and a release signed by Dr. Farrell on

August 12, 1996. (Appendix at pp. 77-85, 99). Plaintiff returned

to work on August 16, 1996.5 

On September 23, 1996, Mr. Opseth gave plaintiff a negative

performance evaluation. (Appendix pp. 364-313). 6 Plaintiff

believed that this evaluation was false, and he was also upset

about being kept away from work during the summer. On the night of

September 23, 1996, plaintiff admittedly had thoughts of suicide,

and he telephoned his former supervisor, Mr. Bill Babcock,

expressing those suicidal feelings. The next day, plaintiff

visited the Mine's nurse, Ms. Barbara Hagerman, and told her of his

suicidal thoughts. He suggested that the Mine should be concerned

about his safety.7 On September 24, 1996, after being sent home

from work, plaintiff went to see Darryl Lynde, his counselor at

work. (Appendix at 109). At that time a "Statement of Injury

Form" was signed by Mr. Lynde containing this notation:
 

8 In regard to this agreement, plaintiff stated he was not

going to harm himself. As noted, Lynde did not specifically answer

the question concerning plaintiff's ability to return to work.

6

I saw Dennis 9/24/96 for one hour. He agreed

to an absolute "NO HARM" contract w/wife &

therapist present he agreed to keep himself

safe from himself now & forever. (Appendix at

127)

On this form, there was a provision for the counselor's opinion as

to whether plaintiff was able to return to work. This portion of

the form was not completed by Mr. Lynde. (Appendix at 127) 8

On September 25, plaintiff called in to say he could not work

because of a migraine headache. On September 26, plaintiff took

the return to work form he had obtained from Lynde to the Mine and

he worked on that day. At the conclusion of his work shift,

plaintiff was told that the Mine had concerns about the release

form since Lynde did not indicate that plaintiff was able to return

to work. Plaintiff was told that the company would make

arrangements for his evaluation by a psychiatrist. (Appendix at

201-203). Plaintiff understood that he would not be returning to

work until that evaluation was made. (Appendix at 112).

On October 11, 1996, plaintiff was evaluated by a Denver

psychiatrist, Dr. Peter Silvestri. Following a review of

plaintiff's medical records and a personal three-hour interview,

Dr. Silvestri found that plaintiff could not safely perform his job

as a blaster. In his report, the doctor found that plaintiff

suffered from several psychiatric disorders, including major

depression together with somatization, anxiety, and personality
 

9 In his deposition, Dr. Silvestri testified that his

decision that plaintiff could not safely perform his job was not

even a "close call". (Appendix at p. 157).

He stated that plaintiff's emotional responses (a tendency to

somatize painful emotions) "could lead to actions that might be

dangerous for him or for others", and that his physical symptoms

such as dizziness and blurred vision could "also aggravate or lead

to a further degree of dangerousness".

7

disorders. (Appendix 163). He also found that plaintiff suffered

from several physical problems including "complex basilar migraine

headaches," possible multiple sclerosis and "benign familial

tremor." Dr. Silvestri also mentioned plaintiff's conflict with

Mr. Opseth and recommended that plaintiff avoid "personal and work

related interactions with persons known to exacerbate his symptoms

(such as Mr. Opseth)." It was also noted that plaintiff's

psychiatric problems are “chronic, and rapid improvement in his

habitual style of interaction should not be expected." (Appendix at

175, 176). 

Dr. Silvestri's report, which was sent to Dr. David Clyde,

defendants' medical director, conveyed the following conclusions:

(Appendix at 175): 

It is my opinion that Mr. Borgialli does

suffer from psychiatric disorders and that

these disorders make it impossible for him to

perform his current job safely. He requires

treatment for these disorders.

It is also my opinion that Mr. Borgialli

suffers from one or more non-psychiatric

medical disorders, and that he requires

treatment for these disorders. Both the

symptoms of these disorders, and the possible

adverse effects of necessary treatment also

make it impossible for him to safely perform

the duties of his current job on the blasting

crew.

9
Dr. Silvestri found that plaintiff's job on the blasting crew

was "inherently dangerous,” and that all of the factors led him to

reach his conclusion that plaintiff "could not perform his current

job safely." (Appendix at p. 164).

8

On November 21, 1996, following receipt of this medical

report, Dr. Clyde issued a Memorandum to Mine officials with

suggestions concerning plaintiff's continuing employment:

Based upon this independent Medical Evaluation

[from Dr. Silvestri] and review of the

information from other treating physicians,

this employee cannot return to a job as

"blaster" at the mine. He presents a direct

safety threat to himself and to the other

workers. I recommend that Management and

Human Resources evaluate this employee's

qualifications for other positions in the

company with the following limitations: 1) No

work in areas that require good balance, depth

perception, and vision to work safely (e.g. no

work at heights or driving machinery). 2) No

work with machinery that requires the employee

to remain mentally alert (He is taking

medications that can impair reaction time and

cause a safety hazard), and 3) Provide work in

a small, stable work group that would allow

limited interpersonal interaction. (Appendix

at 220)(Emphasis supplied)

After receipt of Dr. Clyde's Memorandum, John Kasper, the

Human Resource Manager at the Mine, met with plaintiff and others

concerning Dr. Clyde's recommendations. Other possible job

opportunities for plaintiff in defendant's operation were

discussed. [Appendix at pp. 205-208] At that time there were three

full-time positions open -- for Plant Maintenance Technician, Shop

Maintenance Technician, and Engineering Supervision. These

openings were discussed with plaintiff, but he was not qualified by

education, training, or experience for any of these positions.
 

10 During the course of the "Disability Leave of Absence,"

plaintiff's medical and dental insurance coverage and basic life

insurance continued.

9

There was also one temporary position in the warehouse, which was

unsuitable since the job would have required working on ladders.

Mr. Kasper provided plaintiff with an outline, dated December

11, 1996, of his medical and disability benefits. [Appendix pp.

392-395]. This information included the fact that plaintiff's full

base pay benefits had been exhausted on August 12, 1996, and that

his "half base pay" benefits would be exhausted on December 30,

1996:

Because you will exhaust your

Sickness/Disability benefits on 12/30/96, and

medical restrictions prevent you from

returning to work, you will be placed on a

Disability Leave of Absence effective

12/31/96. This leave will be for a period of

one year, pending approval for Long Term

Disability benefits. At the end of one year,

if you are in receipt of LTD benefits, your

leave will be converted to a Long Term

Disability Leave of Absence. (Ibid. at p.

392).10

Mr. Kasper further informed plaintiff of time limitations 

governing an application for long term disability benefits:

Your disability waiting period is estimated to

be fulfilled about December 20, 1996, at which

time you could be eligible for LTD benefit

payments of 50% of your regular base pay.. . .

You have been provided the LTD application

forms necessary to apply for this benefit, but

you have not completed and returned them as of

this date. I sincerely encourage you to apply

for your LTD benefits -- if you need another

set of the application forms, please let me

know. (Ibid. at 393)
 

11 At the time Dr. Vuolo wrote his report, he was not aware

that safety was an issue in the decision to return plaintiff to

work. He stated that “I didn’t realize that that was the paramount

issue, anyway.” (Appendix at 181).

10

Plaintiff continued on half-pay status until the end of

December, 1996 (Appendix at 114). In March, 1997, he sought an

evaluation from Dr. Mark Vuolo, another psychiatrist. In a report

dated March 29, 1997, Dr. Vuolo diagnosed plaintiff's condition to

include Undifferentiated Somatoform Disorder, Depressive Disorder

NOS, in remission, Anxiety Disorder NOS, in remission, and Possible

Personality Disorder NOS (with dependent and obsessive-compulsive

traits). In addition Dr. Vuolo found that plaintiff had several

physical problems including basilar migraine syndrome, cervical

degenerative disc disease, and familial tremor. (Appendix at 137)

Dr. Vuolo concluded his report in this manner:

Finally, my present psychiatric assessment

does not indicate that Mr. Borgialli is

currently impaired in his capacity to perform

the cognitive or physical tasks involved in

this job as a mine blaster. Furthermore, his

psychiatric illness is not assessed to be of

sufficient severity to cause long-term

occupational disability. . . .

* * * *

It is difficult to give a precise prognosis

for Mr. Borgialli's psychiatric response to

his hopeful return to the work place.

Hopefully, the recommended treatment could

significantly reduce his possible tendency

toward somatization and therefore minimize the

amount of time used in sick leave. However,

it is difficult to imagine in the near future

that.... [he] will have improved his

adjustment capacity sufficiently to

successfully manage a relationship with Mr.

Opseth as his supervisor. [Emphasis supplied,

(Appendix at pp. 137-138).11
 

12 Plaintiff had one year to apply for long term disability,

and, since he did not do so, he was officially terminated effective

December 31, 1997. (Appendix at 209).

11

When Dr. Vuolo's report was sent to the Mine with plaintiff's

request to return to work, defendants determined that plaintiff

would need to be seen by a third psychiatrist since the opinions of

Doctors Silvestri and Vuolo conflicted in part. Plaintiff refused

to be evaluated by another psychiatrist. Because an additional

evaluation was refused, defendants terminated plaintiff, effective

December 31, 1997.12

In this appeal, plaintiff denies that he was or is "disabled,"

as that term is defined under the ADA. Instead, he claims that

defendants "perceived" him to be disabled and discriminated against

him for this reason. The district court concluded that even if

plaintiff were “disabled” the record clearly established that

plaintiff posed a direct threat to others and thus was not a

qualified person for employment as a blaster in the defendants’

mining operation. Similar rulings were made by the district court

regarding plaintiff's qualifications for employment under state

law.

We review the grant of summary judgment de novo, with an

examination of the record and all reasonable inferences which might

be drawn from it in the light most favorable to the plaintiff.

Woodman v. Runyon, 132 F. 3d 1330, 1337 (10th Cir. 1997).

Following our review of the record, we determine that plaintiff
12

failed to establish a prima facie case under the ADA or under state

laws pertinent to his employment status.

The ADA prohibits employers from discriminating against

qualified individuals with disabilities in regard to employment

conditions. 42 U.S.C. §12112(a). In order to prevail on a claim

under the ADA, a plaintiff must establish that he is a disabled

person, that he is qualified for employment -- that is to say that

he is still able to perform the essential functions of his job,

with or without accommodation, and that the employer discriminated

against him because of his disability. A person is considered

disabled within the meaning of the ADA if he has "a physical or

mental impairment that substantially limits one or more of [his]

major life activities." 42 U.S.C. §12102(2)(A).

The first determination made by the district court in

Borgialli's case concerned his status as a "disabled person." In

this appeal, plaintiff denies that he is a "disabled" person under

the ADA. Instead, he claims that the defendants "perceived" him to

be disabled and discriminated against him on a "perceived

disability." The record supports the finding of the district court

that defendants had not "perceived" plaintiff to be disabled at any

time prior to receiving Dr. Silvestri's report. The ADA does not

apply to any time period when plaintiff was temporarily out of work

from March, 1996, to July 31, 1996, due to migraine headaches and

problems with dizziness and blurred vision. During this time,

there is no evidence that defendants considered these symptoms to

be long term or permanent; and, when the Mine received work
13

releases signed by two of plaintiff's physicians, they immediately

returned plaintiff to full duty as a blaster. The ADA was not

designed to apply to temporary conditions. See Bolton v. Scrivner,

Inc., 36 F. 3d 939, 942, 943 (10th Cir. 1994).

The second occasion when plaintiff was not allowed to work

followed Mr. Opseth's unfavorable job evaluation, and plaintiff's

statements regarding safety concerns and suicidal thoughts on

September 24, 1996. At that time, the Mine determined that

plaintiff's presence in the workplace raised a definite safety

concern, particularly when it was noted that Mr. Lynde had not

affirmatively stated that plaintiff was able to return to work.

The Mine claims that it never considered plaintiff's physical

or psychological problems to be permanent in nature because it

"welcomed Mr. Borgialli's return once his health improved." The

district court agreed with this argument "to a point":

 The first evidence that the Mine regarded

Mr. Borgialli as impaired under the ADA is Dr.

Clyde's memorandum. . . . Prior to this time,

however, nothing in the record suggests that

the Mine perceived [his] ailments as anything

more than temporary conditions affecting his

ability to perform the job of a blaster. The

Court finds that summary judgment is

appropriate insofar as Plaintiff has failed to

show that prior to Dr. Clyde's memo he was

"disabled" under the ADA. The Court finds,

however, that Dr. Clyde's memorandum and the

company's actions taken in response to the

memo create a genuine issue of material fact

regarding whether Plaintiff was "disabled"

under the ADA.(Slip Opinion, pp. 8-9)(Emphasis

supplied)

However, the district court further determined that even if

plaintiff was entitled to the protections of the ADA after Dr.
 

13 In Den Hartog, this court found that a teacher’s psychotic

son posed a direct threat to the school community and thus

teacher’s termination did not violate the ADA.

14

Silvestri's report and the recommendations of Dr. Clyde, defendants

were entitled to summary judgment because under the evidence there

can be no liability under the ADA when plaintiff's condition is

found to be a "direct threat" to others in the workplace.

Under the ADA it is a defense to a charge of discrimination if

an employee poses a direct threat to the health or safety of

himself or others. Den Hartog v. Wasatch Academy, 129 F. 3d 1076,

1088 (10th Cir. 1997).13 Thus, 42 U.S.C. §12113(a), (b) provides

the following defenses:

§12113. Defenses.

(a) In general

 It may be a defense to a charge of

discrimination under this chapter that an

alleged application of qualification

standards, tests or selection criteria that

screen out. . . or otherwise deny a job or

benefit to an individual with a disability has

been shown to be job-related and consistent

with business necessity, and such performance

cannot be accomplished by reasonable

accommodation, as required under this

subchapter.

(b) Qualification standards

 The term "qualification standards" may

include a requirement that an individual shall

not pose a direct threat to the health or

safety of other individuals in the workplace.

A definition of the term "direct threat" appears in 42 U.S.C.

§12111 (3) in this manner: "The term 'direct threat' means a

significant risk to the health or safety of others that cannot be
 

14 In Borgialli's case, the district court referred to the

issue of "direct threat" as a "defense" to plaintiff's claim.

15

eliminated by reasonable accommodation." Federal Regulations, 29

C.F.R. §1630.2(r)(1998) expand upon the issue of "direct threat":

(r) Direct Threat means a significant risk of

substantial harm to the health or safety of

the individual or others that cannot be

eliminated or reduced by reasonable

accommodation. The determination that an

individual poses a "direct threat" shall be

based on an individualized assessment of the

individual's present ability to safely perform

the essential functions of the job. This

assessment shall be based on a reasonable

medical judgment that relies on the most

current medical knowledge and/or the best

available objective evidence. In determining

whether an individual would pose a threat, the

factors to be considered include: (Emphasis

supplied)

 (1) The duration of the risk;

 (2) The nature and severity of the

potential harm;

 (3) The likelihood that the potential

harm will occur; and

 (4) The imminence of the potential harm.

While 42 U.S.C. §12113, quoted above, is focused on "Defenses"

to ADA claims of discrimination, it seems that there may be a

question of whether the burden of proving risk rests upon the

employee or the employer. A number of courts have ruled that when

there is a direct threat to the health or safety of others, a

person is not "otherwise qualified" for employment. 14

It appears that this "direct threat" provision is based on the

Supreme Court's decision in School Board of Nassau County v.
 

15 See also, Doe v. University of Maryland Medical System

Corp., 50 F. 3d 1261 (4th Cir. 1995), where plaintiff, a medical

resident, who tested positive for HIV infection, was barred from

surgical practice. In affirming the district court's award of

summary judgment to the defendant in this ADA action, the Fourth

Circuit ruled that the resident was "not an otherwise 'qualified

individual' with a disability." 

In Estate of Mauro v. Borgess Medical Center , 137 F. 3d 398

(6th Cir. 1998), cert. den., 119 S. Ct. 51), an HIV infected

surgical technician was found to be a direct threat to the safety

of others, and thus was not an "otherwise qualified individual" for

a position. Both of these HIV cases stressed the seriousness of

the risk of others.

 

16 This case was filed by the Equal Employment Opportunity

Commission (EEOC), as plaintiff, on behalf of the terminated

employee.

16

Arline, 480 U.S. 273, 287-88, 94 L.Ed. 2d 307, 320-321 (1987) which

held that a teacher was not otherwise qualified for her job under

the provisions of Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. §794 if her tuberculosis infection posed a significant

threat to the health or safety of others. 15

In E.E.O.C. v. Amego, Inc., 110 F. 3d 135, 142-144, (1st Cir.

1997), the First Circuit recognized that provisions of the ADA

regarding qualifications were based upon the Arline decision. In

Amego, an employee who worked at a residence for severely disabled

patients claimed that she was terminated in violation of the ADA

because of her diagnosed depression.16 In affirming the entry of

summary judgment in favor of the employer, the court held that the

record supported the employer's determination that the employee's

depression made her unqualified to perform essential job functions

such as administering and monitoring residents' medication. In so
 

17 Plaintiff contends that the Amego case is distinguishable

because Borgialli was not responsible for the safety of others.

This contention is contrary to the record because concern for the

safety of others was included in plaintiff's job description.

 

18 In his workplace, Moses sat on a platform above fast-moving

press rollers, or underneath a conveyer belt with "in-running"

pinch points. He also worked next to exposed machinery that

reached temperatures of 350 degrees.

17

ruling, the court discussed plaintiff's burden of proof in this

manner:

 We hold that, in a Title I ADA case, it is

the plaintiff's burden to show that he or she

can perform the essential functions of the

job, and is therefore "qualified". Where

those essential job functions necessarily

implicate the safety of others, plaintiff must

demonstrate that she can perform those

functions in a way that does not endanger

others. There may be other cases under Title

I where the issue of direct threat is not tied

to the issue of essential job functions but is

purely a matter of defense, on which the

defendant would bear the burden. . . . For the

reasons which follow, we conclude plaintiff's

burden was not met. (110 F. 3d at 144). 17

(Emphasis supplied)

 In Moses v. American Nonwovens, Inc., 97 F. 3d 446 (11th

Circuit 1996), cert. den. 519 U.S. 1118 (1997), an employee who had

epilepsy was terminated from a job in which he worked near

dangerous machinery.18 In sustaining summary judgment in favor of

the employer, the court held that "[t]he employee retains at all

times the burden of persuading the jury either that he was not a

direct threat or that reasonable accommodations were available,"

and that plaintiff Moses "failed to produce probative evidence that

he was not a direct threat." 97 F. 3d 446 at 447. 
 

19 In this case, Dr. Robertson had "voiced his own concerns

about his ability to take care of patients, stating that it was

only a matter of time before he seriously hurt someone." 161 F. 3d

at 296.

18

In Robertson v. Neuromedical Center, 983 F. Supp. 669, (M.D.

La. 1997), affirmed, 161 F. 3d 292, (5th Cir. 1998), cert. denied,

119 S. Ct. 1575 (1999), the plaintiff was a neurologist with

attention deficit hyperactivity disorder, which interfered with his

ability to complete charts and interpret tests. In affirming the

entry of summary judgment in favor of his former employer, the

Fifth Circuit ruled that the neurologist was not a "qualified

individual" under the ADA because he was unable to perform the

essential functions of his job since his memory problems posed a

"direct threat" to the medical safety of his patients. 19

In Pikora v. Blue Cross & Blue Shield of Michigan, 970 F.

Supp. 591, 595 (E.D. Mich. 1997), an ADA action, the court found

that the employee, who suffered from depression and migraine

headaches, failed to establish that she was qualified for a

position as a customer service representative.

In Newman v. Chevron U.S.A., 979 F. Supp. 1085 (S.D. Tex.

1997), the court found that an employee afflicted with posttraumatic stress disorder, which caused him to lose his

concentration and memory, was not qualified for his "extremely

dangerous" position of driving a truck filled with highly flammable

gasoline, with or without accommodation by his employer. In

granting summary judgment, the court noted the extreme risk to

others which such occupation presented: (979 F. Supp. 1090)
19

 Assuming that Plaintiff is suffering from a

disablement as alleged in his Complaint, the

Court finds that Plaintiff is not qualified

for the position from which he was terminated

because he cannot perform the essential

function of driving a gasoline truck. . . .

Plaintiff was hired as a gas delivery driver.

By his own admission, Plaintiff's tasks

included driving an eighteen-wheeled semitractor trailer from the terminal where his

truck was loaded with highly flammable

gasoline, to retail service stations, where

this highly flammable fluid was put into

underground storage tanks. Regardless of

one's mental state, hauling flammable gasoline

over the open road is extremely dangerous.

Undertaken with a condition that causes loss

of concentration and memory, such activity

approaches utter recklessness and blatant

disregard for the safety of others. . . .

In contrast to the above cases, some courts have suggested

that the burden of proof be imposed upon the employer when the

position in question does not obviously or necessarily include a

risk to others. The various rulings in Rizzo v. Children's World

Learning Centers, illustrate the importance of a careful evaluation

of the degree of risk which a disabled person presents in his or

her work situation. Rizzo involved a hearing-impaired employee of

a child care center who sued her former employer under the ADA. It

appears that she was demoted because the child care center believed

that plaintiff could not safely drive the school van. The district

court granted summary judgment for the employer. The Fifth Circuit

reversed and remanded the case upon a finding that there was an

issue of material fact as to whether the van driver was a direct

threat to the safety of others. Rizzo v. Children's World Learning

Centers, Inc., 84 F. 3d 758 (5th Cir. 1996). 
 

20 In instructing the jury, the trial court gave conflicting

instructions on which party had the burden of proving that

plaintiff was a "direct threat". The 5th Circuit agreed with the

Moses opinion in the 11th Circuit that the burden of proof is on

the plaintiff to prove that, as a qualified individual, she is not

a direct threat to herself or others, but disagreed with Moses

"only insofar as that opinion allows for no exceptions to this

rule." In explaining this ruling the Fifth Circuit noted that ...

when a court finds that the safety requirements imposed tend to

screen out the disabled, then the burden of proof shifts to the

employer, to prove that the employee is, in fact, a direct threat."

173 F. 3d at pp. 259-260.

20

Following this remand, and after trial, the district court

entered judgment on a jury verdict for the employee, the employer

appealed, and that judgment was affirmed. Rizzo v. Children's World

Learning Centers, Inc., 173 F. 3d 254 (5th Cir. 1999).20

Thereafter, the Fifth Circuit entered an order for rehearing en

banc, 187 F. 3d 680, and, again affirmed the judgment. Rizzo v.

Children's World Learning Centers, Inc., 213 F. 3d 209 (5th Cir.

2000), cert. denied, Child. World Learning Cen. Inc., v. Rizzo ,

_______Sup. Ct. ______, 2000 WL 1279326, 69 USLW 3166 (U.S. Oct.

30, 2000). In this last decision, the Fifth Circuit ruled that

since the employer had failed to object to the burden of proof

instruction, the trial court had not committed "plain error" in

instructing that the burden rested upon the employer and that, in

any case, the court would not resolve the burden of proof issue

which was raised for the first time on appeal. In addition, the

court ruled that the evidence supported the jury's finding that

plaintiff was able to drive the van safely and did not pose a
 

21 At trial, plaintiff presented evidence of her driving

skills and an audiologist's report addressing safety concerns.

 

22 In Nunes, the employer had no medical evidence concerning

plaintiff's disability at the time she was terminated, and no

inquiry was made as to what accommodations might be made to

continue her employment.

21

threat to her passengers.21 In arriving at this decision, the

court cited the opinions in Moses v. American Nonwovens, Inc., and

EEOC v. Amego, Inc., supra, stating:

 It is unclear from the statutory scheme who

has the burden on this issue. It may depend

on the facts of the particular case. The EEOC

suggested at argument that where the essential

job duties necessarily implicate the safety of

others, the burden may be on the plaintiff to

show that she can perform those functions

without endangering others; but, where the

alleged threat is not so closely tied to the

employee's core job duties, the employer may

bear the burden. . . . None of these issues

were raised in the district court and all we

decide today is that the district court did

not commit plain error in its charge. (213 F.

3d, note 4, at p. 213). (Citation omitted)

See also, Nunes v. Wal-Mart Stores, Inc., 164 F. 3d 1243 (9th

Cir. 1999), where the terminated employee, who suffered from

fainting episodes, sought damages under the ADA. The district

court entered summary judgment for the employer, finding that

plaintiff "posed a direct threat to customers of Wal-Mart." In

reversing and remanding the case, the circuit court found that

plaintiff had raised an issue of material fact as to the question

of "direct threat." In this case, it appears that in her capacity

as a cashier, plaintiff would not ordinarily be considered as a

"risk" to Wal-Mart customers.22
 

23 With regard to any question of "accommodation," the court

found that this was not an issue in the case:

 In this case, because safety is vitally

important, it follows that an “unsafe”

employee could not be accommodated in the

blaster position. Plaintiff has consistently

maintained that he could have returned without

accommodation, because he was never disabled

or a threat. . . This case clearly revolves

around whether Plaintiff actually posed a

safety risk, not whether such a risk could be

accommodated. (Fn. 7, slip opinion at p. 13)

22

In Borgialli's appeal, he contends that regardless of the

potential harm involved, there must be additional findings

regarding other issues mentioned in the federal regulations

concerning the “likelihood that potential harm will occur,” the

duration of the risk, and the "imminence" of potential harm. The

district court in this case did weigh all factors to be considered

in determining "risk," and correctly concluded that plaintiff's

dangerous occupation was of determining weight in this case: 

 In analyzing the Mine's assessment, the

Court must evaluate the impact of Mr. 

Borgialli's inherently dangerous occupation 

. . . . A lapse in safety by a blaster could

easily result in serious bodily injury or

death for multiple individuals. The nature

and severity of the potential harm, therefore,

weighs heavily in a finding that Mr. Borgialli

posed a "direct threat."

* * * *

The Court finds that no reasonable jury could

fault the Mine for its decision to preclude

Plaintiff's return to work until it received

assurance from a doctor that Mr. Borgialli no

longer posed a safety risk. (Slip opinion at

p. 13).23

In the case before us, the defendants were confronted with a

situation in which its employee, who worked with explosives and who
23

harbored a grudge against his supervisor, threatened suicide and

perhaps injury to others. The company obtained an independent

medical opinion from Dr. Silvestri who found that plaintiff could

not safely return to his work as a blaster. Defendants then

considered the report of Dr. Vuolo who believed that plaintiff

could perform the "cognitive and physical aspects of the job," but

with the proviso that he was not able at that time "to successfully

manage a relationship with Mr. Ospeth as his supervisor."

Defendants then requested that a third medical opinion be obtained,

but plaintiff refused to assent to this and demanded an immediate

return to work. Under all of these circumstances, we find that the

district court correctly found that defendants' motion for summary

judgment should be sustained:

The ADA does not require employers to take unnecessary risks

when dealing with a mentally or physically impaired employee in an

inherently dangerous job. Plaintiff was not a "qualified person"

to work in a position as a blaster because the defendants rightly

considered that he was a direct threat to others in the workplace.

It must also follow that the district court correctly found that

plaintiff was not a "qualified person" under the Wyoming Fair

Employment Practices Act, and that his state claim for breach of

contract must fail because he was, in fact, terminated for "cause"

as a safety risk.

Accordingly, the district court's grant of summary judgment in

favor of defendants is AFFIRMED.
24